Q&A – 7 June 2021
Presumption of spouse’s death
My husband left Tanzania for overseas to look for employment. In the first five months of his arrival overseas he was phoning me almost every two days. Now it is 4 years and he has not phoned and I have also failed to reach him. Even his parents are asking me if I have ever heard of him because they haven’t heard from him. In this situation does the law allow me to contract another marriage?
Section 161 read together with sections 94 and 95 of the Law of Marriage Act [Cap.29 R.E 2019] expounds the procedure for contracting another marriage if a spouse has not been heard from for a long time. A party to a marriage can contract another marriage on the basis of the absence of his spouse if the spouse alleged to be absent has not been heard for 5 years by those who might be expected to have heard of him if he/she were alive. This presumption is the spouse is dead.
The spouse who wants to rely on the presumption of death in order to contract another marriage may file a petition for the Court to grant her/him a decree declaring that her/his spouse is presumed dead for not being heard for 5 years. A decree declaring that one of the parties to the marriage is presumed dead becomes effective 90 days after it is issued. However, if there is an appeal against the declaratory decree of the presumption of death, the decree becomes effective after the determination of the appeal or the second or final appeal, if any. After expiration of 90 days from the date of grant of orders, the spouse intending to contract another marriage can proceed with the process of contracting another marriage.
Furthermore, marriage is deemed to have broken down irreparably if the spouse petitioning the Court for divorce has proved that he/she has been deserted by a marriage partner for 3 years consecutively. If the Court is satisfied with the proof of desertion and further proof that the desertion is willful, the Court can proceed to grant a decree of divorce after which you proceed to contract another marriage.
Since it is only 4 years since your husband has not been heard or seen by those who would have been expected to hear about him had he been alive, you cannot petition the Court for declaratory decree that your husband be presumed dead for absence. You can only petition for divorce on the basis of desertion for 3 years if you can prove that his absence from home is willful. If the divorce petition is granted, you can proceed to contract another marriage otherwise you will need to wait for 1 more year.
Interest rate on delayed land compensation
Our lands were acquired three years back in order to pave way for a public project. The ministry responsible for the project brought valuers to conduct valuation but to date we have not been paid compensation. After commencement of valuation exercise we were stopped by the Government not to carry out any further development on our lands and we have obeyed the order. Since it is two years now from the date we were stopped to develop our lands and we have not been paid, are we entitled to claim interest on compensation amount? What is the statutory rate of interest we are entitled to claim?
There are four laws which prescribe the interest rate payable upon delay to pay compensation for loss of interest on land. These laws are Land Acquisition Act [Cap.118 R.E 2019]; the Valuation and Valuers Registration Act, 2016; the Land (Assessment of the Value of Land for Compensation) Regulations, 2001 and the Village Land Regulations, 2001.
Where the land is acquired or right of occupancy revoked by the President under the Land Acquisition Act, the interest rate provided under section 15 is 6 percent per annum which accrues from the date of land possession by the President until such time when compensation is paid.
Acquisition or revocation of interest on land under the Land Act [Cap.113] or the Village Land Act [Cap.114 R.E 2019] also attracts interest at average percentage rate of interests offered by commercial banks on fixed deposits. Deposit interest rate varies from time to time and from bank to bank and will likely be more than 6 percent.
The legal challenge which remains unanswered is when does the interest become payable under the Land Act? According to section 52(8) of the Valuation and Valuers Registration Act, the interest accrues after the expiration of six months from the date the Chief Valuer approved the valuation. The Chief Valuer is required by the law to approve the valuation within 6 months from the date of completion of valuation.
However, under regulation 13 of the Land (Assessment of the Value of Land for Compensation) Regulations, 2001 and regulation 19 of the Village Land Regulations, 2001 the interest accrues from the date of acquisition or revocation of interest on land and not from the date of valuation or approval of the valuation by the Chief Valuer.
Consideration in cash
I sold my small plot to a friend who paid me the purchase price with the latest model phone. My tax consultant said that payments must be in shillings and not by way of barter? I also wish to pay the taxes on the transfer by way of an asset and not cash. Kindly guide me.
Unless there is illegality that we are unaware of, receiving consideration in any form other than cash for such a sale is acceptable and we do not see an issue with this. However, you must pay your taxes based on TRAs scales by way of currency and not any other asset. You can imagine what TRA would have to go through if they are paid taxes in cows, mobile phones, homes and other assets. It would be impossible to manage. Only if you fail to pay your taxes, the TRA can proceed sell your asset to recover the taxes.